Opinion
D059685 Super. Ct. No. J515375D
10-31-2011
In re C.S.I., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.D.I., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Affirmed.
C.D.I. (Mother) appeals the judgment terminating her parental rights to her daughter, three-and-one-half-year-old C.S.I. (C.S.). Mother contends that the court erred in summarily denying her Welfare and Institutions Code section 388 petition, in which she sought to have C.S. placed with her, and that the court also erred in declining to apply the beneficial relationship exception to termination of her parental rights (§ 366.26, subd. (c)(1)(B)(i)). We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
I
BACKGROUND
In August 2008, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition on behalf of one-year-old C.S. The petition alleged that C.S. had been exposed to violent confrontations in the family home between Mother and C.S.'s father, D.I. (D.). Specifically, in January, Mother hit D. and suffered a cut on the inside of her own lip. In July, Mother scratched D. on the face. D. signed a safety contract but violated it by allowing Mother to return to the home. In 2004, Mother was arrested for inflicting corporal injury on a spouse. The petition also alleged that Mother smoked marijuana regularly, as observed by D. and one of Mother's other children.
Mother had a teenage daughter who had been removed from Mother's custody because Mother had physically abused her. Mother's parental rights to the daughter were subsequently terminated.
Mother also had three sons, ranging in age from eight to eleven years old, who were living with her at the commencement of this case, and who were removed from her custody along with C.S. The sons had been subject to previous dependencies after Mother allowed a babysitter to physically abuse them when they misbehaved. By the time of C.S.'s section 366.26 hearing, Mother's parental rights to one of the sons had been terminated, and her reunification services had been terminated in the cases of the two remaining sons.
C.S. is the only subject of the instant appeal.
C.S. was detained in a foster home. In August 2008, the court made true findings on the petition. In September, the court ordered C.S. placed in foster care.
In June 2009, Mother was convicted of eight counts of telephone harassment of a woman with whom D. was having an intimate relationship. Mother had threatened to harm the victim and the victim's children. In September, Mother was placed on three years' summary probation with 240 days in custody. One week later, at the 12-month review hearing in this case, the court terminated Mother 's reunification services. In December, Mother was released from jail. In April 2010, she was incarcerated for a probation violation, and remained in jail until early June. At the 18-month review hearing in June, the court terminated D.'s reunification services and set a section 366.26 hearing. In November, Mother gave birth prematurely to a boy, who was detained in foster care.
The baby died in foster care when he was four months old.
In March 2011, C.S. was moved from the foster home where she had lived since August 2008 and placed in a prospective adoptive home with a family who was in the process of adopting one of her older brothers. On May 6, Mother filed her section 388 petition. That day the court summarily denied the petition and terminated parental rights.
II
DISCUSSION
A
The Court Did Not Abuse Its Discretion in Summarily Denying Mother's Section 388 Petition
Section 388 allows the juvenile court to modify an order if a party establishes, by a preponderance of the evidence, that changed circumstances exist and that the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing as to both of these elements. (Zachary G., supra, at p. 806.; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The petition should be liberally construed in favor of granting a hearing, but "[t]he prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Zachary G., supra, at p. 806.) We review the summary denial of a section 388 petition for an abuse of discretion. (Zachary G., supra, at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
In her section 388 petition, Mother requested that the court modify the order setting the section 366.26 hearing and place C.S. with Mother The petition alleged the following changed circumstances: Mother was participating in a domestic violence group and individual therapy. She was in substance abuse treatment and all of her tests had been negative. C.S. enjoyed visits and continued to bond with Mother. Visits had been appropriate. There had been no new instances of violence between Mother and D. The petition alleged that the proposed modification was in C.S.'s best interests for the following reasons: Visitation had been regular since January 2010. During visits, C.S. was comfortable, had fun and was "highly interactive" with Mother. Mother was attentive to C.S. and interacted with her in an age-appropriate manner. Mother consistently fulfilled a parental role and responded appropriately to C.S. Mother demonstrated knowledge of C.S.'s development, empathized with her and put C.S.'s needs ahead of her own.
The court found that Mother had made a prima facie showing of changed circumstances in that she was willingly and consistently participating in services. However, the court found that she had not made a prima facie showing that granting the section 388 petition would be in C.S.'s best interests. The court noted that C.S. was in a prospective adoptive home with her brother, with whom she had a close relationship, and that C.S. was grieving the loss of her former foster parents. The court believed that removing her from her prospective adoptive home "would be quite an emotional jolt to her." Further, Mother had never progressed beyond supervised visits, and C.S. had never looked to Mother for support, discipline, structure or routine. During the dependency, another child had been removed from Mother's custody. Finding that Mother had not made a prima facie showing of best interests, the court summarily denied the section 388 petition.
The court also noted that D. had reported "that [Mother] had threatened [him] and his girlfriend in the event that they have [C.S.] placed with them." The court stated that the reliability of this report was "50/50, at best."
The juvenile court did not abuse its discretion in concluding that Mother had not made a prima facie showing that placing C.S. with her was in C.S.'s best interest. Three-and-one-half-year-old C.S. had been out of Mother's care for more than two and one-half years. They had only four visits while Mother was in jail from September to December 2009, and no visits while she was in jail from April to June 2010. Visits, which were always supervised, generally went well. C.S. was comfortable with Mother and they were affectionate with each other. C.S. knew Mother as her mother and called her "Mom," but showed no stress when visits ended. During visits, C.S. talked about the foster parents with whom she had lived for most of her dependency, and referred to them as "Mom and Dad." C.S. had known the prospective adoptive parents for nearly a year, had transitioned into their home over a period of several months, and at the time of the section 366.26 hearing, had been placed in their home for two months. The transition had been smooth; the prospective adoptive family gave C.S. the emotional support that she needed and maintained contact with her former foster family. C.S. had a bond with her brother, who was in the process of being adopted by the prospective adoptive family.
During two visits in 2009, Mother encouraged C.S. to hit and kick her brothers.
Mother asserts that we should apply the factors in In re Kimberly F. (1997) 56 Cal.App.4th 519 in our section 388 analysis. In Kimberly F., the reviewing court stated that the juvenile court should consider the following factors in determining whether to grant or deny a section 388 petition: the seriousness of the problem that led to the dependency, the reason the problem continued, the strength of the parent-child and child-caretaker bonds, the length of time the child has been in the system, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason the change did not occur sooner. (Kimberly F., supra, at pp. 530-532.) A consideration of these factors would not assist Mother. Her violence and drug use were serious problems. Her physical abuse of her other children had led to dependencies. During the pendency of this case Mother was convicted of offenses that included threats of harm to the victim and the victim's children. Despite being offered approximately one year of reunification services in this case, Mother's sixth child was detained. Although there was a bond between C.S. and Mother, Mother's changes were too little, too late.
Because this case was past the reunification phase, the focus was on C.S.'s need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) There was thus a rebuttable presumption that it was in C.S.'s best interests to remain in the prospective adoptive home. (Ibid.) The court did not abuse its discretion by summarily denying the section 388 petition.
B
The Court Did Not Err in Refusing to Apply the Beneficial Relationship Exception to Termination of Mother's Parental Rights
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[t]he parent[ has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Whether this type of relationship exists is determined by taking into consideration "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs. . . ." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support the court's finding that although C.S. was attached to Mother and losing that relationship would be detrimental to C.S., the detriment did not outweigh the benefits that C.S. would gain through adoption. (Id. at pp. 576-577.)
Mother does not contest the juvenile court's finding that C.S. was adoptable.
The court did not expressly state whether Mother maintained regular visitation and contact. The record shows that she visited regularly, except while she was incarcerated.
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C.S. recognized Mother as her parent, was comfortable with her and appeared excited to see her at their supervised visits. During visits, Mother helped C.S. with toilet training, fed her, provided guidance and helped her learn the alphabet. However, Mother had a history of abusing her children and losing custody, as well as a lengthy history of domestic violence. For the first year of her life, C.S. lived with Mother in a neglectful and abusive environment. C.S. was detained when she was one year old. At the time of the section 366.26 hearing, C.S. was three and one-half years old and had been out of Mother's care for more than two and one-half years.
In determining that the benefits of adoption outweighed any detriment to C.S. from terminating her relationship with Mother, the court could reasonably have concluded that in the prospective adoptive home, C.S. received the emotional support that she needed. C.S. was living in the prospective adoptive home with one of her siblings, with whom she shared a bond. The evidence showed that C.S. called the prospective adoptive parents "mom" and "dad" and was doing well in their home. C.S. missed her former foster mother, but the evidence demonstrated that the prospective adoptive parents provided C.S. emotional support and maintained contact with her former foster mother. C.S. asked to see the former foster mother, but did not ask for Mother between visits and left visits with Mother easily. The prospective adoptive home offered the stability that C.S. needed.
There is substantial evidence to support the conclusions that C.S. did not have "a substantial, positive emotional attachment" to Mother of the kind that would outweigh the well-being that C.S. would gain in a permanent, adoptive home, and that she would not be greatly harmed by the severance of the relationship with Mother. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There is thus, substantial evidence to support the court's finding that the beneficial relationship exception did not apply.
III
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.